Huber v. Stark

— 362 — Tbe following opinion was filed January 10, 1905 : Mahshall, J. Counsel’s first contention is tbat respondent should have sued in ejectment and tbat, as proper objections were made and exceptions to rulings saved to present tbat question here, a reversal should be granted for failure to invoke tbe proper jurisdiction. "Whether the invasion by one of the domain of another by tbat one projecting tbe eaves of bis building over tbe premises of such other, or by any intrusion into tbe latter’s domain, as by projecting a foundation stone beyond tbe boundary, such other being in no wise disturbed in tbe occupancy of bis own land up to such boundary, is remediable in equity to compel a discontinuance thereof, or by an action for damages as for a trespass, has been solved in tbe affirmative in some jurisdictions (Aiken v. Benedict, 39 Barb. 400; Vrooman v. Jackson, 6 Hun, 326; Meyer v. Metzler, 51 Cal. 142; Grove v. Fort Wayne, 45 Ind. 429), and in tbe negative in others (Sherry v. Frecking, 4 Duer, 452 ; Murphy v. Bolger, 60 Vt. 123, 15 Atl. 365). It seems tbat tbe conflict created in respect to tbe matter in tbe New York court at an early date is yet unsolved. Leprell v. Kleinschmidt, 112 N. Y. 364, 19 N. E. 812. Probably it is true, as said in 10 Am. & Eng. Ency. of Law (2d ed.) 531, tbe weight of authority is in favor of tbe remedy in ejectment, but this state is committed to tbe doctrine that if, notwithstanding the encroachment, tbe owner of tbe premises invaded really occupies up' to bis boundary line, tbe proper action to redress tbe interference is one for damages, or to abate tbe aggression as a continuing nuisance. McCourt v. Eckstein, 22 Wis. 153; Zander v. Valentine Blatz B. Co. 95 Wis. 162, 70 N. W. 164; Rahn v. Milwaukee E. R. & L. Co. 103 Wis. 467, 79 N. W. 747; Rasch v. Noth, 99 Wis. 285, 74 N. W. 820. Tbat, it would seem, would rule this case, if tbe proposition as to tbe precise facts were new, but it was seemingly so held in — 363 — Rasch v. Noth, supra. That was a ease of overhanging eaves,, and judgment in ejectment was reversed npon the ground that the action should have been in equity to abate a nuisance, or for damages for trespass. In Rahn v. Milwaukee E. R. & L. Co., supra, a similar invasion was held to satisfy the rule as to the use of equity jurisdiction to abate a continuing trespass. Exceptions are urged to several findings of fact as contrary to the clear preponderance of the evidence. It does not seem advisable to discuss the evidence for the purpose of demonstrating the correctness of our conclusion in regard thereto. As we read the record, there is ample evidence to warrant the findings. Counsel view some of them from a radically wrong standpoint. It is said that appellant justified under an oral agreement and the court found such agreement as pleaded, and so should have decided that all interferences complained of were covered by the consideration acquired by respondent in respect to the new chimney. We are unable to find that the court decided that the agreement was made as pleaded. On the contrary, the decision is to the effect that there was no consideration passing between the parties, except as regards the chimney. The same infirmity appears in counsel’s criticism of the court’s assessment of damages. This inquiry is made: The court having found the agreement as alleged,, “how could damages be possibly assessed for injuries naturally caused in the execution of it ?” That is based on the-false assumption as to the decision upholding the agreement pleaded. Again, it is said, plaintiff’s roof was out of repair, else no damage would have been caused thereby from the source complained of. Manifestly, it is no ground for mitigation of damages caused to the property of one person by a trespass thereon that if such property had been in a good state-of repair the wrongful invasion would not have damaged it. Some other criticisms of the findings made by the learned counsel might be referred to, which in our view furnish as364 little ground for disturbing the judgment as those we have instanced. It1 is insisted that tire conclusion of law that appellant had no better right to erect and maintain the eave trough than a mere license is wrong, because there was something more than such a right involved, in that the privilege was granted in exchange for a consideration, possession was taken of respondent’s property, so far as necessary, to enjoy such privilege, .and it was expected that it would be permanent. The premise assumed, that there was a consideration given for the privilege, is untenable, as we have seen. It follows that the assignment of error based on such premise is likewise untenable. It is further contended that, conceding the facts as to the agreement between the parties being as found by the court as respondent views such finding, the indications are that it was supposed at the time the agreement was made that the privilege granted to appellant would continue indefinitely, and •changes were made in the buildings in harmony therewith, in which circumstances the privilege is more in the character of an easement than a mere license, and therefore was not revocable at the pleasure of the grantor, Morrill v. Mackman, 24 Mich. 219, being referred to. That case has no analogy to the one in hand. The privilege there involved was orally granted upon the promise of an annual money consideration. It was said that if the agreement had been put in writing the result would have been a tenancy, and since it was not it was .good as a lease from year to year. The inference plainly is that the controlling feature in the case was the consideration agreed to be paid. True, it was suggested that the attitude of the parties was such as to indicate a mutual understanding that the privilege would be permanent, but it seems plain such feature of itself would not turn a license into an easement or a lease. We should take note in passing that in Thoemke v. Fiedler, 91 Wis. 386, 64 N. W. 1030, Mr. Justice Newman, — 365 — speaking for the court, in discussing the question of whether a parol license of the sort under consideration can be enforced in equity, used an expression quite similar to that above referred to and in a way that might give rise to the belief that the duration of a mere license as viewed by the parties thereto at the time of the creation thereof would, or. might, control as to whether it is revocable at the pleasure of the licensor ornot. This is the expression to which we refer: “The case is entirely bare of evidence showing whether' such privilege was intended to be perpetual or limited in duration.” That was a mere passing remark. Probably the effect thereof, as it might be viewed apart from the general principle which ruled the case, was not appreciated. Certainly, whether at the inception of a mere license to one to enjoy some privilege in the land of another the parties thereto assume or agree' that it shall be permanent does not affect its revocability. The true rule is that a mere verbal permission by one to> use the land, to some extent, of another, no consideration' being paid therefor, though that other, on the faith thereof, enters upon such land and makes valuable improvements thereon to enable him to enjoy such permission, conveys no-interest in the land and no right which, as to acts done by him after his privilege shall have been revoked, can be sue-cessfully asserted, defensibly or otherwise, as against the-owner of the premises. Thoemke v. Fiedler, 91 Wis. 386, 64 N. W. 1030; Fryer v. Warne, 29 Wis. 511; Tanner v. Volentine, 75 Ill. 624; French v. Owen, 2 Wis. 250; Clute v. Carr, 20 Wis. 531; Duinneen v. Rich, 22 Wis. 550. The further point is made that a license is a full defense-to all acts done pursuant thereto. We fail to find anything in the decision of the trial court not in harmony with that principle. The acts for which the redress was sought, and granted, are those committed after the license was revoked. — 366 — 'Tbe next point made is that the judgment erroneously enjoined appellant absolutely from allowing water from his roof to flow on to the building’ or premises of the respondent. Whether one has any right whatever to turn water accumulated on his building on to the premises of another, either in a stream or through a spout, or in drops, the modem authorities are not in harmony. This court does not appear to have heretofore spoken decisively on the question. In some jurisdictions it is held that one so turning water on to the premises of another is responsible for actionable wrongdoing only if he acts negligently to the damage of his neighbor. Underwood v. Waldron, 33 Mich. 239; Barry v. Peterson, 48 Mich. 263, 12 N. W. 181; Hazeltine v. Edgmand, 35 Kan. 202, 10 Pac. 544; Armstrong v. Luco, 102 Cal. 272, 36 Pac. 674. Elsewhere the rule is that one property owner is entitled to absolute immunity from having water cast upon his premises from the adjoining building owned by his neighbor. In those cases, 'while the gist of the actions for violating such right is negligence, it is held that the wrong does not consist in allowing the water accumulating on the premises of one to be cast on to the adjoining premises negligently, but in allowing it, at least with knowledge of the facts, to be so cast at all. Martin v. Simpson, 6 Allen, 102; Tanner v. Volentine, supra, Fitzpatrick v. Welch, 174 Mass. 486, 55 N. E. 178; Shipley v. Fifty Associates, 106 Mass. 194, 198; Jutte v. Hughes, 67 N. Y. 267, 272. In the last case cited the trial court instructed the jury that “if the -water did'come from the defendánt’s yard and he did everything which Avas possible, under the circumstances, and practicable in the Avay of drainage to carry it off from the premises, ho Avas not liable.” The facts -were that defendant paved his yard so that the Avater falling thereon, Avhich came from the building or otherwise, floAved over such pavement on to the promises of the plaintiff. The instruction was condemned on appeal, the record shoAving that the circumstances — 367 — referred to ivere in part created by the defendant and naturally caused the water that fell on his premises to flow onto those of his neighbor, the court remarking: “ITe was hound to take care of such water as fell and accumulated upon his own premises, and to prevent its causing any injury to the property of the plaintiff.' It matters not that defendant did all that he reasonably could to take the water off, if he suffered it improperly to increase on his own premises, and so as to flow onto the plaintiff’s premises.” In Martin v. Simpson, supra, Bigelow, C. J., speaking on the same subject, said: “No one has a right, by an artificial structure of any kind upon his own land, to cause the water which falls and accumulates thereon in rain or snow to be discharged upon the land of an adjacent proprietor. Such an erection, if it occasions the water to flow, either in the form of a current or stream, - or only in drops, works a violation of the adjoining proprietor’s right of property, and cannot be justified, unless a right is shown by express grant or by prescription.” Such doctrine seems much more consonant with the common-law rights of property than that of the Michigan court, which seems to be to the effect that there must be, in the nature of things, a sort of neighborly exchange of privileges between the. owners of adjoining buildings, permitting each, if he acts with due care, to use the premises of the other as a dumping place for the water accumulating upon his own building. The right of eavesdrip which one may possess in the land of his neighbor is an interest in realty, — an easement, and hence does not exist in any. case as a mere appurtenance. It is a property right which must be acquired like any other interest in land — the stillicidiwn as regards the fall of water in drops and ftumen as to flow of water in a stream from a spout or gutter, as the subject is treated in the civil law. The ancient rule on the subject, which cannot well be ignored without judicially taking property of one person and conferring — 368 — it on another without compensation, is stated by Mr. Wash-burn thus: “For one to construct the roof of his house in such a manner as to discharge the water falling thereon in rain, upon the land of an adjacent proprietor, is a violation of the right of such proprietor, if done without his consent, and this consent must be evidenced by express grant or prescription. . . . The mode in which this injury may be occasioned may be by extending the roof of such building beyond the line of separation between the two estates, or by so constructing it as to throw the water falling thereon, by its own impulse and direction, across the line, and thereby causing it to be discharged upon the estate of the adjacent landowner.” Washburn, Easements, *390. It is strenuously contended that a licensor cannot upon revoking the license rightly compel the licensee to restore the original condition of the premises. If counsel speak only of restoration to the extent of merely terminating the trespass caused by adversely exercising the license after its revocation, he is manifestly wrong. That is all the mandatory part of the judgment is designed to accomplish in this case., It does not require the restoration of any structure, but merely requires appellant to cease trespassing upon respondent’s premises by discontinuing the eave spout and its connections and cease permitting the water to flow from his roof on the respondent’s premises. Some other suggestions are made by appellant’s counsel, but they either are quite unimportant or are so fully covered by what has been said that we will forego further discussion of the case. By the Court. — The judgment is affirmed. A motion for a rehearing, and for a modification of the judgment with respect to the removal of structures and restoration of plaintiff’s building, was denied March 14, 1905. Keewis, T., took no part.